War crimes case against US soldiers has vulnerabilities

SEATTLE -- In hearings this fall, Army prosecutors, armed with sworn statements about plots to kill innocent civilians, have laid out their cases against soldiers accused of murder, conspiracy and other wrongdoing while serving in Afghanistan.

But the hearings, which involved a soldier from Wasilla as one of the accused, inside an aging brick building at Joint Base Lewis-McChord also have brought out some vulnerabilities in the government's case.

One setback involves the case against Staff Sgt. Calvin Gibbs, a central figure who Army prosecutors allege conspired to plan and carry out the murder of three unarmed Afghan men.

Col. Thomas Malloy, an Army judge advocate who presided over Gibbs' November pretrial hearing, has recommended that one of the three murder charges be dropped because it could be difficult to prove the charge beyond a reasonable doubt, according to sources who have seen the document that contains that proposal. Gibbs is one of five Joint Base Lewis-McChord soldiers accused of murder in high-stakes cases that have drawn international attention to how the U.S. military-justice system handles war crimes.

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Gibbs has never admitted any wrongdoing. Prosecutors portray Gibbs as a squad leader who led his men down a dark path to kill unarmed civilians and then make the deaths appear like legitimate battlefield casualties.

In addition to the charges against Gibbs, prosecutors allege that Spc. Jeremy Morlock of Wasilla participated in three murders in January, February and May, and that Spc. Michael Wagnon, Spc. Adam Winfield and Pfc. Andrew Holmes each were involved in one of those murders. Seven other soldiers have been accused of lesser crimes, including Staff Sgt. Robert Stevens, who earlier this month reached a plea agreement that will compel him to testify against other soldiers.

In the pretrial hearings, some of the most compelling evidence against Gibbs is contained in videotaped statements by Morlock and Winfield that were submitted to the court for review.

Winfield told investigators that Gibbs formed a "kill team" of trusted soldiers who targeted noncombatants, and he described how Gibbs shot an unarmed Afghan man last May and placed a grenade next to the body to make it look like a battlefield action.

"He (the Afghan) was friendly. He didn't seem to have any animosity toward us," Winfield said.

Morlock already faces a general court-martial for alleged involvement in all three murder cases. In his sworn statements, he alleges that Gibbs provided the grenade used to stage a January killing and also suggested the crime be carried out during a patrol. Morlock also accused Gibbs of shooting an unarmed Afghan who died in February, and he detailed Gibbs' role in the alleged murder in May.

"Gibbs had pure hatred for all Afghanis (Afghans) and constantly referred to them as savages," Morlock said.

Malloy, who presided over Gibbs' pretrial hearing, said that the prosecution of the 26-year-old staff sergeant will depend heavily on testimony by Morlock and Winfeld.

But in his report to Army commanders, Malloy noted that Morlock and Winfield had a history of drug use, a relative lack of maturity and culpability in some of the offenses, and all this "could affect how the fact-finders consider their testimony."

Malloy concluded there was enough evidence to proceed with charging Gibbs with the February and May murders and conspiracy charges for all three murders.

But Gibbs is not alleged to have fired any of the weapons that caused the death of the Afghan in January. And Malloy recommended that the Army drop that murder charge against Gibbs, according to sources who saw his recommendation.